California’s Solar Shade Control Act

A Review of the Statutes and Relevant Cases

Scott Anders
Kevin Grigsby
Carolyn Adi Kuduk

January 2007

Energy Policy Initiatives Center

University of San Diego School of Law

University of San Diego School of Law, 5998 Alcala Park, San Diego, CA 92110
(619) 260-4589 www.sandiego.edu/epic
Disclaimer: The materials included in this paper are intended to be for informational
purposes only, and should not be considered a substitute for legal advice in any particular case.

About EPIC

The Energy Policy Initiatives Center (EPIC) is a nonprofit academic and research center of the
USD School of Law that studies energy policy issues affecting the San Diego region and
California. EPIC integrates research and analysis, law school study, and public education, and
serves as a source of legal and policy expertise and information in the development of
sustainable solutions that meet our future energy needs.

For more information, please visit the EPIC website at www.sandiego.edu/epic.

© 2007 University of San Diego. All rights reserved.

Solar Shade Control Act

Table of Contents
1. Introduction ................................................................................................................ 1
1.1. Organization of the Paper .............................................................................................2
2. The Solar Shade Control Act ..................................................................................... 3
2.1. California’s Policy Intent ................................................................................................3
2.2. Definition of “Solar Collector” ........................................................................................3
2.3. Installation Requirements..............................................................................................4
2.4. Threshold for Violation ..................................................................................................4
2.5. Who is Liable under the Act? ........................................................................................5
2.6. Penalties for Violation....................................................................................................5
2.7. Procedures for Seeking Protection Under the Act.........................................................5
2.8. Exemptions for Certain Property Owners......................................................................6
2.8.1. Exemption for Existing Trees or Shrubs ................................................................6
2.8.2. Exemption based on Effective Date ......................................................................6
2.8.3. Exemption for Timberland and Agricultural Land ..................................................6
2.8.4. Exemption for Replacement Trees ........................................................................7
2.8.5. Exemption for Municipalities..................................................................................7
2.8.6. Exemption for Passive Systems ............................................................................7
3. How the Provisions Affect Each party........................................................................ 8
3.1. Solar Collector Owner ...................................................................................................8
3.2. Tree Owner ...................................................................................................................8
4. Cases Relating to the Act ........................................................................................ 10
4.1. Sher v. Leiderman .......................................................................................................10
4.1.1. Summary .............................................................................................................10
4.1.2. Court’s Ruling ......................................................................................................10
4.1.3. Court’s Reasoning...............................................................................................11
4.2. Zipperer v. County of Santa Clara...............................................................................11
4.3. Kucera v. Lizza............................................................................................................12
4.4. Prah v. Maretti .............................................................................................................12
5. Conclusion ............................................................................................................... 14
6. Appendix.................................................................................................................. 15
6.1. Legal Journals and Law Review Articles.....................................................................15
6.2. Full Text of Solar Shade Control Act ...........................................................................16

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1. INTRODUCTION
California has been a leader in promoting solar energy since 1976, when it began to provide
financial incentives for investment in solar energy technologies.1 One legacy of California’s
early interest in solar energy is a series of laws designed to protect a consumer’s right to install
and operate solar energy technology on a home or business, including access to sunlight, or
solar access. Although California’s solar energy laws have been around for nearly 30 years, we
now examine this groundbreaking legislation for two reasons. First, consumers and businesses
often misunderstand the provisions and application of these laws. Second, California regulators
recently approved the California Solar Initiative (CSI), which allocated over $3 billion to provide
financial incentives to residential and non-residential customers to install photovoltaics and solar
water heaters on their homes and businesses.2 As of October 2006, there were about 23,000
photovoltaic systems operating in California representing approximately 180 megawatts (MW) of
electric capacity.3,4 The CSI has established a goal of encouraging Californians to install 3,000
MW of photovoltaics by 2016, sufficient to power more than 600,000 homes.5 Such a drastic
increase in the number of operating photovoltaic systems in addition to the anticipated increase
in solar water heaters could multiply solar access questions arising from these installations.
This paper examines Sections 25980-25986 of the California Public Resources Code,6 known
as the Solar Shade Control Act (“the Act”), and reviews lawsuits brought under the Act. Through
the Act, which was enacted in 1978,7 the Legislature sought to balance the desired effects of
planting trees and shrubs for shade and visual appeal with the desire for increased use of solar
energy devices, whose performance can be hindered by shade from nearby vegetation. The
Act provides for specific and limited controls of trees and shrubs to protect the use of nearby
solar energy systems. However, the extent to which the Act protects solar energy systems from
vegetation-created shade is frequently misunderstood, and the subject of many disputes
between neighboring property owners. This paper is intended to provide solar energy users and
neighboring tree owners more information about the content and application of California’s solar
laws.

1
A solar energy tax credit was created in 1976 and codified in Cal. Rev. & Tax. Code § 23601.
2
Cal. Pub. Util. Comm’n Decision D.06-01-024. (This decision also provides for a pilot solar water heating
program for the San Diego region.)
3
See “Grid Connected PV Capacity (kW) Installed in California” available at
http://www.energy.ca.gov/renewables/emerging_renewables/GRID-CONNECTED_PV.PDF (December
14, 2006).
4
One megawatt (MW) equals 1,000,000 watts, or 1,000 kilowatts (kW). In the case of photovoltaics, 1
MW could generate enough energy to power approximately 200-225 homes, depending on solar
resources and average residential consumption levels.
5
SB 1 allocates up to over $100 million for solar water heating incentives. At the time of writing there
were no estimates on how many solar water heaters this might encourage but the CPUC was considering
a pilot solar water heating program.
6
Unless otherwise indicated, all further references are to this code. For simplicity, in the text we refer to
this code generally as the Solar Shade Control Act – or “Act.”
7
Assembly Bill 2321.

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1.1. ORGANIZATION OF THE PAPER

This paper is organized into the following sections:
o Section 2 provides detailed information about the Act, including key provisions, and
discusses how and to whom the Act applies.
o Section 3 lists statutory criteria included in the Act to help solar energy system owners
and tree owners8 determine whether the provisions of the Act apply.
o Section 4 discusses California case law under the Act.
o Section 5 follows with a general conclusion.
o The Appendix, Section 6, provides other informative resources related to the Act, and
the full text of the Act.

8
The Solar Shade Control Act uses both property owner and tree owner, in this paper we use “tree
owner” for simplicity.

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2. THE SOLAR SHADE CONTROL ACT

In concept, California’s solar access laws spring from deep historical roots. The Romans, whose
architecture was designed to take advantage of the sun’s light and heat, likely were the first to
codify protections of a homeowners’ access to sunlight. Similarly, the Doctrine of Ancient Lights
protected landowners’ access to sunlight in 19th Century Great Britain.9
California’s interest in solar access laws began in 1973, when the United States faced an
energy crisis on multiple fronts, including an inadequate electricity supply, climbing fuel prices,
and an oil embargo. This crisis, in conjunction with a second that occurred in 1979-1980,
increased consumer and government interest in resource conservation and alternative energy
technologies. Consequently, in 1978 California passed, among other energy-related measures,
legislation that provided financial incentives for consumers and businesses to invest in solar
energy technologies, as well as Assembly Bill 2321, the Solar Shade Control Act.10
The Solar Shade Control Act provides limited protection to solar energy system owners from
shading caused by trees and shrubs on adjacent properties. Generally speaking, the Act
prohibits a property owner from allowing trees or shrubs to be planted or to grow in such a way
that they shade an existing solar energy system installed on a neighboring property.11 The Act
includes the following key provisions.

2.1. CALIFORNIA’S POLICY INTENT

Section 25980 provides a policy rationale for the Act: “It is the policy of the state to promote all
feasible means of energy conservation and all feasible uses of alternative energy supply
sources.” This Section also encourages the planting of trees and shrubs to create shade and
moderate ambient air temperature. But with passage of the Act, the Legislature recognized that
circumstances may exist “in which the need for widespread use of alternative energy devices,
such as solar collectors, requires specific and limited controls on trees and shrubs.”

2.2. DEFINITION OF “SOLAR COLLECTOR”

Section 25981 of the Act provides the statutory definition of a solar collector as “a fixed device,
structure, or part of a device or structure, which is used primarily to transform solar energy into
thermal, chemical, or electrical energy. The solar collector shall be used as part of a system
which makes use of solar energy for any or all of the following purposes: (1) water heating, (2)
space heating or cooling, and (3) power generation.”
Based on this statutory definition, the following common solar energy systems would be
considered “solar collectors”:
• Photovoltaics
• Solar water heating for use in buildings
• Solar water heating for space heating

9
“The common-law principle by which a landowner acquired, after 20 years of uninterrupted use, an
easement preventing a neighbor from building an obstruction that blocks light from passing through the
landowner's window.” Black's Law Dictionary (8th ed. 2004)
10
AB 3250, which included the California Solar Rights Act, solar easements, and a solar tax credit; and
AB 2321, the Solar Shade Control Act.
11
Cal. Pub. Res. Code § 25982. (Deering 2006)

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• Solar pool heating

The Act does not specify whether a residential structure designed to take advantage of the
sun’s light and warmth (sometimes called a passive solar home) would be defined as a solar
collector by the Act. However, this question was answered in Sher v. Leiderman, in which the
court held that a passive solar home12 would not meet the definition of a “solar collector,” as
defined in Section 25981. The court reasoned that the word “primarily” in the statutory definition
precluded a passive solar home from the provisions of the Act. Consequently, passive solar
homes, as well as other passive systems, are not protected from shading by the Solar Shade
Control Act.13
Confusion over what systems are “active” or “passive” under the Act is compounded by system-
specific terminology. For example, there are two main types of solar water heating systems:
active and passive. Active systems use pumps and sensors to control the flow of water into and
out of the collector. Passive systems have no moving parts and rely on existing water pressure
from the home’s plumbing and convection to move water through the collector. But, because
both active and passive solar water heating systems are used primarily to convert solar energy
into hot water, they are “solar collectors” under the Act, and entitled to protections from shading
thereunder.

2.3. INSTALLATION REQUIREMENTS

Section 25982 provides that the Act’s protections only apply to “solar collectors,” as described
above, that have been installed according to specific local building and setback requirements.
In relevant part, the Act specifies that solar collectors must “be set back not less than five feet
from the property line, and no less than 10 feet above the ground. A collector may be less than
10 feet in height, only if in addition to the five feet set back, the collector is set back three times
the amount lowered.”14 Thus, it is possible that a solar energy system that meets Section
25981’s definition of a solar collector may be installed in a manner that violates the Section
25982 setback requirements. In such a case, the solar collector likely would not be protected by
the provisions of the Act.

2.4. THRESHOLD FOR VIOLATION

Specifically, Section 25982 of the Act prohibits certain tree owners from planting or allowing a
newly planted tree or shrub to cast a shadow over more than 10 percent of a solar collector on a
neighboring property during the hours of 10 a.m. and 2 p.m.
This prohibition only applies to existing or newly planted trees that do not cast a shadow on the
solar collector within one year of the collector’s installation.15 If neighboring trees cast a shadow
on a solar collector at the time of its installation, or if the neighboring trees begin to cast a
shadow on the solar collector within one year of its installation, the protections provided to solar

12
The Solar Shade Control Act does not provide a definition of a passive solar home.
13
Sher v. Leiderman, 181 Cal. App. 3d 867, 883 (1986).
14
Cal. Pub. Res. Code § 25982. (Deering 2006)
15
Cal. Pub. Res. Code § 25982 uses the words “annual solar cycle” to describe the time period starting
from installation of a collector when a tree can shade yet be exempt from the act. One interpretation is
that “annual solar cycle” means one year. Robert Thayer, Solar Access "It’s The Law!" 9-13 (1981).

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collector owners under the Act would not apply, even as to additional shading that occurs after
the one year period has ended.

2.5. WHO IS LIABLE UNDER THE ACT?

Section 25983 provides that every property owner who maintains a tree or shrub or permits a
tree or shrub to be maintained in violation of 25982, and every person leasing the property of
another person who maintains or permits a tree or shrub to be maintained in violation of 25982,
can be held responsible for violations of the Act. Thus, a resident property owner, or a lessee or
renter of property with trees that shade an adjacent solar collector as defined by the Act, could
be liable for a violation of the Act.

2.6. PENALTIES FOR VIOLATION

Section 25983 of the Act provides that a person is guilty of a public nuisance as defined in
Sections 370 and 371 of the California Penal Code16 and in Section 3480 of the California Civil
Code17,18 if that person fails to remove or alter a tree or shrub after receiving “reasonable
notice”19 (abatement notice) in writing from a district attorney, city attorney, or prosecuting
attorney requesting removal or alteration of the tree or shrub in violation of Section 25981.
Under Section 25983, every violation of the Act is punishable by a fine not to exceed $1,000.
Section 25983 further provides that fines applicable to the tree owner in violation of the Act
would accrue at $1,000 per day beyond the service of the abatement notice, for as long as the
tree owner continues to violate the provisions of the Act.

2.7. PROCEDURES FOR SEEKING PROTECTION UNDER THE ACT

A solar collector owner seeking protections under the Act must do so according to the following
procedures set forth in Section 25983 of the Act:

16
Cal. Pen. Code § 370 and § 371 and Cal. Civ. Code § 3480 of the Civil Code define public nuisance.
Cal. Pen. Code § 370: “Anything which is injurious to health, or is indecent, or offensive to the senses, or
an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or
property by an entire community or neighborhood, or by any considerable number of persons, or
unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river,
bay, stream, canal, or basin, or any public park, square, street, or highway, is a public nuisance.” Cal.
Pen. Code § 371: “An act which affects an entire community or neighborhood, or any considerable
number of persons, as specified in the last section, is not less a nuisance because the extent of the
annoyance or damage inflicted upon individuals is unequal.” (Deering 2006)
17
Cal. Civ. Code § 3480 of the Civil Code defines a public nuisance as “one which affects at the same
time an entire community or neighborhood, or any considerable number of persons, although the extent
of the annoyance or damage inflicted upon individuals may be unequal.” (Deering 2006)
18
Gergacz, Legal Aspects of Solar Energy: Easements for Sunlight and Individual Solar Energy Use, 10
B.C. Envtl. Aff. L. Rev. 1 (1982). Violators of the Act are prosecuted by local government because
violations of the Act are considered a public nuisance. Proponents of this arrangement point to the
benefits solar energy brings generally, and also argue that public prosecution removes the barrier of
private litigation costs. However, some instead think a violation should be considered a private nuisance,
because the action is usually between two private homeowners, thus not affecting the public at large.
19
Cal. Pub. Res. Code § 25983 defines “reasonable notice” as “30 days from receipt of notice from the
prosecutor to address the violation.” (Deering 2006)

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1. The owner of the solar collector must demonstrate to the District, City, or prosecuting
attorney (the “prosecutor”) that a violation has occurred. Presumably, this requires the
presence of each of the conditions for a violation described in the Act (section 4.1 of this
paper provides a listing of all the provisions in the Act that together could demonstrate
that a violation has occurred).
2. If the solar collector owner demonstrates to the satisfaction of the prosecutor that a
violation has occurred, the prosecutor will then issue an abatement notice to the tree
owner.
3. The tree owner then has a 30-day “reasonable notice” period to abate the violation.
4. If, after 30 days the tree owner has not responded to the abatement notice, and the solar
collector owner wants to further pursue the case, the solar collector owner must then file
an affidavit with the prosecutor alleging that the violation has not been abated.
5. At this point, it is the prosecutor’s duty to prosecute anyone allegedly violating the Act.
If the prosecutor does not agree that a violation has occurred and does not issue an order to
abate, the solar collector owner can file a private lawsuit against the tree owner. However,
because this would be a private suit, the solar collector owner would be responsible for all
resulting litigation costs.

2.8. EXEMPTIONS FOR CERTAIN PROPERTY OWNERS

The Act both explicitly and implicitly exempts certain property owners and certain trees and
shrubs from the Act. Indeed, the solar collector owner’s right to sunlight is not absolute.

2.8.1. Exemption for Existing Trees or Shrubs

Section 25982 exempts from the provisions of the Act trees or shrubs already in place at the
time the solar collector was installed. Further, trees or shrubs planted prior to the installation of
the solar collector that grow to cast a shadow over more than 10% of the solar collector are also
likely exempted from the Act.

2.8.2. Exemption based on Effective Date

Section 25982 establishes January 1, 1979 as the effective date of the Act; any tree or shrub
planted prior to that date is exempt from the provisions of the Act.

2.8.3. Exemption for Timberland and Agricultural Land

Section 25984 of the Act specifically exempts all trees planted, grown, or harvested on
timberland20 or on land devoted to the production of commercial agricultural crops.21

20
Cal. Pub. Res. Code § 4526 defines "Timberland" as “land, other than land owned by the federal
government and land designated by the board as experimental forest land, which is available for, and
capable of, growing a crop of trees of any commercial species used to produce lumber and other forest
products, including Christmas trees. Commercial species shall be determined by the board on a district
basis after consultation with the district committees and others.” (Deering 2006)
21
Cal. Pub. Res. Code § 25984 (Deering 2006)

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2.8.4. Exemption for Replacement Trees22

Section 25984 also provides an exemption for trees or shrubs planted to replace trees or shrubs
that had been growing prior to the installation of a solar collector. Consequently, if a tree
planted prior to the installation of the solar collector dies and is subsequently replaced, the
replacement tree is exempt from the Act, even if it shades the solar collector in a way that would
otherwise violate the Act.

2.8.5. Exemption for Municipalities

Section 25985 of the Act allows any city, county, or unincorporated area to adopt an ordinance
exempting itself from the Act.23 This exemption applies only to trees planted and maintained by
the municipality itself, and not to trees owned by private citizens. Zipperer v County of Santa
Clara, discussed in section 5.2 of this paper, further discusses this exemption.

2.8.6. Exemption for Passive Systems

Section 25986 permits owners of passive solar systems that would cast a shadow over a solar
collector on an adjacent property to seek an exemption from the Act. To grant an exemption,
the court must find that the net energy savings from the passive solar system would exceed
those of the shaded solar collector.24
As discussed in section 3.2 of this paper, the statute does not clearly define what solar energy
systems or structures constitute a “passive or natural solar heating system or cooling system”
and are exempt from the Act’s protections. A passive or natural solar heating or cooling system
could be interpreted to mean a structure or building that is designed to use orientation, thermal
mass, and shading for passive heating or cooling. Alternatively, a passive or natural solar
heating or cooling system could be interpreted to mean deciduous trees that would block
summer sunlight but permit winter sunlight to enter a building. Trees or shrubs25 used as
passive or natural solar heating or cooling systems26 that shade an adjacent active solar system
may be exempt from the provisions of the Act, provided the court finds that the passive system
provides greater net energy savings than the adjacent solar collector.27

22
Cal. Pub. Res. Code § 25984 does not specifically define what constitutes a replacement tree. (Deering
2006)
23
Cal. Pub. Res. Code § 25985 states that “adoption of such an ordinance shall not be subject to the
provisions of the California Environmental Quality Act (commencing with Section 21000).” The following
California jurisdictions have exempted themselves from the Act: Butte County, City of Shasta Lake,
Sacramento County, City of Santee, and County of Santa Clara. Note that this is not an exhaustive list.
Review local municipal codes or contact local officials to determine if a municipality has an exemptions.
(Deering 2006)
24
Cal. Pub. Res. Code § 25986. (Deering 2006)
25
Gergacz, Legal Aspects of Solar Energy: Easements for Sunlight and Individual Solar Energy Use, 10
B.C. Envtl. Aff. L. Rev. 1 (1982). “Tree and shrub placement may work passively with the design of a
building to naturally heat or cool it, at least in part.”
26
Generally, passive systems are based on a deliberate design of a building to achieve natural heat gains
in the winter and natural heat loses in the summer. 10 Pac Law Journal 484, 486 (1979).
27
Cal. Pub. Res. Code § 25986 states that the “The tree owner may seek equitable relief in a court of
competent jurisdiction to exempt such system from the provisions of the act. The court may grant such an

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3. HOW THE PROVISIONS AFFECT EACH PARTY

We have grouped the key provisions of the Act to demonstrate the threshold for (1) the solar
collector owner to demonstrate a violation under the Act, and (2) the tree owner to determine if
the alleged violation has merit. While it is unclear how a local District, City, or prosecuting
attorney would interpret the law, the following lists include the provisions that presumably would
be used to determine whether a violation of the Act has occurred.

3.1. SOLAR COLLECTOR OWNER

The following provides a listing of the statutory conditions necessary to demonstrate that a tree
or shrub on an adjacent property is shading a solar collector in a way violates the Act. The solar
collector owner must be able to answer the following questions in the affirmative:
• Does the neighboring tree or shrub shade more than 10% of the solar collector between
10 am and 2 pm local standard time?
• Was the tree or shrub in question planted, or did the tree or shrub in question grow to
shade the solar collector, after the solar collector’s installation?
• Did the tree or shrub in question begin to cast a shadow on the solar collector one year
after the solar collector’s installation?
• Was the tree or shrub in question planted after January 1, 1979?
• Was the solar collector installed pursuant to the Section 25982 setback requirements?
• Does the solar collector meet the statutory definition of a “solar collector” provided in
Section 25981?

3.2. TREE OWNER

The following provides a list of the statutory conditions necessary to determine if a property or
tree owner is violating the Act. There may be no violation of the Act if the tree owner can
answer in the negative to any of the following questions:
• Does the tree or shrub shade more than 10% of the solar collector between 10 am and 2
pm local standard time?
• Do you own or lease the property on which the tree or shrub is located?
• Was the tree or shrub in question was planted after January 1, 1979?
Further, there may be no violation of the Act if the tree owner also can answer any of the
following questions in the affirmative:
• During the 12 months following installation of the solar collector, did the tree or shrub in
question cast a shadow on the solar collector?
• Is the tree or shrub in question owned by a municipality that has passed an ordinance
exempting itself from the Act?

exemption based on a finding that the passive or natural system would provide a demonstrably greater
net energy savings than the active system which would be impacted.” (Deering 2006)

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• Is the tree or shrub in question growing on land designated as timberland or agricultural

land?
• Are the trees or shrubs in question part of a passive cooling and heating strategy in
which net energy savings from the passive solar system are demonstrably greater than
those of the shaded solar collector?

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4. CASES RELATING TO THE ACT

Though relatively few cases have examined the Solar Shade Control Act since its enactment in
1978, the following cases provide insight into the Act’s interpretation and legal argumentation:
• Sher v. Leiderman, 181 Cal. App. 3d 867 (1986)
• Zipperer v. County of Santa Clara, 133 Cal. App. 4th 1013 (2005)
• Kucera v. Lizza, 59 Cal. App. 4th 1141 (1997)
• Prah v. Maretti, 108 Wis. 2d 223 (1982)

4.1. SHER V. LEIDERMAN

Sher v. Leiderman, briefly discussed in section 3.2 of this paper, provides guidance as to
whether a passive solar home meets the Act’s definition of a “solar collector”.

4.1.1. Summary
Plaintiff Sher designed and constructed a house that takes advantage of winter heat and light.
The home is oriented on an east-west axis with long southern exposures. The Shers installed
south-facing windows, skylights, and a large south-facing concrete patio as passive design
features to light and heat the home’s interior. The home, which did not include any solar
collectors as defined by the Act, was characterized by the trial court as a “passive solar” home,
even though it had no thermal mass features to store and emit radiation of heat.28
In the decades after the Shers built their house, trees on the adjoining property, owned by the
defendant Leidermans, matured and prevented winter sunlight from reaching the Sher home.
Between December and February, the trees cast a shadow on much of the Sher home from
10:00 a.m. to 2:00 p.m. To restore sunlight to the Sher’s home, some trimming, topping, and
removal of the Leidermans’ trees would have been necessary. As required by Section 25983,
the Shers contacted the Santa Clara County District Attorney, who determined that the Shade
Control Act did not apply to the Sher’s situation and did not offer a notice to abate.
The Shers then privately sued on three causes of action: (1) private nuisance, (2) public
nuisance under the California Shade Control Act, and (3) negligent infliction of emotional
distress.29 We focus primarily on the application and interpretation of the Solar Shade Control
Act in this case. The court noted in its ruling that at the time no case law had developed
regarding the Act, so the question of whether a passive solar home is eligible for the protections
afforded solar collectors under the Act was one “of first impression.”30

4.1.2. Court’s Ruling

The California Court of Appeals ruled against the Shers, holding that a passive solar home
designed to collect solar heat does not meet the statutory definition of “solar collectors”
contained in Section 25981. The court also held that blockage of sunlight in and of itself does
not constitute a private nuisance.

28
Sher v. Leiderman, 181 Cal. App. 3d 867, 873 (1986).
29
Id. at 875.
30
A case of first impression is the first time such a specific legal question on that specific topic has been
considered by the courts.

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4.1.3. Court’s Reasoning

In its ruling, the court cites Section 25981, which, as noted above, defines “solar collector” as “a
fixed device, structure, or part of a device or structure, which is used primarily to transform solar
energy into thermal, chemical, or electrical energy.” The Act further provides that a “solar
collector shall be used as part of a system which makes use of solar energy for any or all of the
following purposes: (1) water heating, (2) space heating or cooling, and (3) power generation.”
The Shers argued that their passive solar home is a “structure, or part of a…structure… used as
part of a system which makes use of solar energy,”31 and therefore a “solar collector” under the
Act. The court instead reasoned that the key word in the definition of a solar collector is
“primarily,” rather than “structure.” Although the Sher’s south-facing windows were part of a
strategy to passively heat and cool their home, the court did not agree that the primary function
of their windows were to heat their home, since the windows also allowed light into the home.
The court further reasoned that permitting the Sher’s home to be considered a solar collector
would create a definitional problem whereby every home that has a south facing window would
be considered a solar collector, regardless of any intention to passively heat or cool their home,
and therefore be eligible to receive the protections of the Act.
The court additionally cited Section 25982 of the Act, pertaining to setback restrictions, to
support its position that the Sher’s home was not a solar collector. The court reasoned that the
setback restrictions pertain to a solar collector that would be installed on a home or building and
not to the home itself.32 Also, the court noted that if the Legislature had intended to apply the
rights and remedies of the Act to buildings, it would have indicated this intent through explicit
statutory language.

4.2. ZIPPERER V. COUNTY OF SANTA CLARA

Zipperer v. County of Santa Clara examines the municipal exemption contained in Section
25985 of the Act. The central question in this case was whether a municipality could exempt
itself from the Solar Shade Control Act after the alleged violation of the Act.
The Zipperer family built a home with solar heating and cooling systems33 in the mid-1980s.
The County of Santa Clara purchased the adjacent property in 1991, which contained a small
grove of trees, and designated this land as a park reserve. After the County acquired the land,
the trees on this parcel grew significantly and began to shade the Zipperer home, hindering the
performance of their solar system. In 1997 the homeowners requested that the County trim or
remove the offending trees. The County did not respond to this request, but in 2002 passed an
ordinance exempting itself from the Act. In 2004, the homeowners brought a suit against the
County seeking relief under the Act. The Zipperers complained that the County violated the Act
well before it exempted itself, and that allowing the exemption to apply would allow the County
to escape liability for preexisting violations.

31
Id. at 881.
32
Id. at 882-883.
33
The case did not specify what type of system the Zipperers installed on their home.

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The court found in the County’s favor, holding that Santa Clara County may without limitation
exempt itself from the Act, citing Section 2598534 and other law regarding the retrospective
application of statutes.35

4.3. KUCERA V. LIZZA

Kucera v. Lizza relates to the validity of a Town of Tiburon ordinance that protected property
views and sunlight against unreasonable obstruction by tree growth. The main question was
whether the Solar Shade Control Act by implication preempts separate local ordinances
regarding blockage of sunlight not related to solar collectors.
A local ordinance prohibited trees from blocking neighboring homeowners’ views and sunlight. A
homeowner brought suit against a neighbor for violating this ordinance. The tree owner argued
in part that the Solar Shade Control Act preempted the local ordinance, meaning that blockage
of sunlight is only illegal if it shades a solar collector.
The court, however, held that the Solar Shade Control Act does not preempt local ordinances
restricting the growth of trees from unreasonably blocking views and sunlight.

4.4. PRAH V. MARETTI

Prah v. Maretti is a Wisconsin Supreme Court case in which a homeowner sued a neighbor
whose construction plans would block sunlight needed for the homeowner’s solar collector. At
the time, Wisconsin had no state law protecting access to sunlight, so the homeowners claimed
that blocking sunlight from reaching their solar collector constituted a private nuisance.
Note that because Prah v. Maretti is not a California case, California courts are not required to
abide by its holding. For comparison, California case law provides generally that blockage of
sunlight does not constitute a private nuisance.
In this case, the lower court ruled in favor of the neighbor in a summary judgment motion.36 This
decision held that private nuisance law does not apply to blockage of sunlight, and therefore
there is no claim upon which the homeowners can seek relief.
The Wisconsin Supreme Court, however, reversed the lower court ruling, and determined that
the case should proceed to trial. The Wisconsin Supreme Court further held that private
nuisance law might apply to obstruction of sunlight for solar energy purposes, and therefore the
homeowners have stated a claim for which relief could be granted. The case was remanded
back to the lower court but never went to trial.37
In reversing the lower court ruling, the Wisconsin Supreme Court detailed arguments for why
blockage of sunlight could constitute a private nuisance. The court noted that this question
“requires a court to make a comparative evaluation of conflicting interests and to weigh the
gravity of the harm to the plaintiff against the utility of the conduct by the defendant in the use of
his land, where such use constitutes a nontresspassory invasion of the plaintiff’s interest in the
private use and enjoyment of his property.”38

34
Cal. Pub. Res. Code § 25985. (Deering 2006)
35
Zipperer v. County of Santa Clara, 133 Cal. App. 4th 1013, 1026 (2005)
36
A decision about the merits of the case before it reaches trial.
37
Prah v. Maretti, 108 Wis. 2d 223, 242 (1982)
38
Id. at 228

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The Wisconsin Supreme Court also examined three policy reasons that other jurisdictions have
been unwilling to apply the broad power of private nuisance to cases involving solar access.
The first of these is the longstanding right of landowners to use property as they wish as long as
they did not cause physical damage to a neighbor. Secondly, sunlight has historically only been
valued for aesthetic enjoyment or for illumination, not as a means of power generation. Third,
society has a strong interest in not restricting or impeding land development. The Wisconsin
Supreme Court argued that these three policy concerns are no longer fully accepted or relevant,
especially considering the increase in regulation and development of the use of sun for energy
purposes, not just enjoyment.39
Coincidentally, in 1982, the same year Prah was decided, Wisconsin passed legislation similar
to California’s Solar Shade Control Act, and which provided two remedies for solar shading
claims.40

39
Id. at 235
40
According to Wisconsin law: Frst, a solar collector owner can apply for a solar access permit before a
neighbor begins building a structure. If the building creates a substantial blockage of sunlight to the solar
collector between 9 a.m. and 3 p.m., the permit holder can seek damages. There are two restrictions in
obtaining the permit. Neighbors can request a hearing within 30 days of a permit being applied for. If the
neighbor can show that they have already obtained a building permit, spent at least $500 on the structure
or plans, or made substantial progress towards planning or constructing, the permit can be denied. The
applicant also must show that the benefits of obtaining the permit outweigh the burden to the neighbors.
The second remedy relates to the building “envelope” within which buildings must be constructed. If a
building is constructed outside this envelope, and a portion of the structure outside the envelope blocks a
solar collector, the solar collector owner can seek damages. This remedy does not apply if the intruding
building’s construction permit was issued before the installation of the solar collector. It also requires the
existence of municipality zoning regulations for the building envelope.
Damages in both situations apply to court costs, attorney’s fees, and actual damages.

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5. CONCLUSION
The Solar Shade Control Act provides limited protections for solar collector owners whose
devices are shaded by neighboring trees and shrubs. These protections are limited because
the Act contains specific requirements that determine which solar collectors are eligible for
protections under the Act, including the function of the collector, the manner in which it was
installed on the building, and the date the offending tree shrub was planted.
We revisit this landmark law because its provisions are generally not well understood and
California’s solar market will grow significantly in the coming decade as a result of expanded
financial incentives for solar energy systems. This paper provides information and analysis on
the Act to help parties understand the provisions of the law and to understand how the law
affects them. Our research should help solar collector owners determine if they are eligible for
protections under the law; help tree owners determine if they are liable for an allegation brought
under the law; help municipalities understand their ability to be exempt from the provisions in
the law; and help District and City Attorneys understand their role and responsibility under the
law.

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6. APPENDIX

6.1. LEGAL JOURNALS AND LAW REVIEW ARTICLES

For information about the Act’s possible conflicts with the U.S. Constitution, and other
interpretations of the Act, the following law review articles and books are useful.41
• Gergacz, Legal Aspects of Solar Energy: Easements for Sunlight and Individual Solar
Energy Use, 10 B.C. Envtl. Aff. L. Rev., 1-36 (1982). This article discusses the
possibility that the act violates the U.S. Constitution and other specifics of the act.
• Eisenstadt, Access to Solar Energy: The Problem and Its Current Status, 22 NAT.
RESOURCES J. 21 (1982). This general article on solar energy devotes a few pages to
specific interpretations of the act.
• Johnson, State Approaches to Solar Legislation: A Survey, 1 SOLAR L. REP. 55 (1979).
This article also devotes a few pages to discuss various interpretations of the act.
• Energy; Solar Shade Control, 10 Pac Law Journal 484 (1979). This article provides an
overview of the Act including unresolved interpretational questions.
• Murphy, Comprehensive Solar Access Regulation in California as a Taking of Property:
A Future Battleground for an Old Conflict?, 15 U.S.F. L. Rev. 537 (1980-1981). This
article also addresses potential conflicts with the U.S. Constitution.
• Thayer, Solar Access "It’s The Law!”, 9-13, (1981). This is a handbook on California’s
solar laws, discussing applications and interpretations of the Act.

41
This is not intended to be an exhaustive list of resources available on the Solar Shade Control Act.

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6.2. FULL TEXT OF SOLAR SHADE CONTROL ACT42

The Solar Shade Control Act is contained in the California Public Resources Code Sections
25980-25986. The full text of the statutes is provided below.
25980. This chapter shall be known and may be cited as the Solar Shade Control Act. It is the
policy of the state to promote all feasible means of energy conservation and all feasible uses of
alternative energy supply sources. In particular, the state encourages the planting and
maintenance of trees and shrubs to create shading, moderate outdoor temperatures, and
provide various economic and aesthetic benefits. However, there are certain situations in which
the need for widespread use of alternative energy devices, such as solar collectors, requires
specific and limited controls on trees and shrubs.
25981. As used in this chapter, "solar collector" means a fixed device, structure, or part of a
device or structure, which is used primarily to transform solar energy into thermal, chemical, or
electrical energy. The solar collector shall be used as part of a system which makes use of
solar energy for any or all of the following purposes: (1) water heating, (2) space heating or
cooling, and (3) power generation.
25982. After January 1, 1979, no person owning, or in control of a property shall allow a tree or
shrub to be placed, or, if placed, to grow on such property, subsequent to the installation of a
solar collector on the property of another so as to cast a shadow greater than 10 percent of the
collector absorption area upon that solar collector surface on the property of another at any one
time between the hours of 10 a.m. and 2 p.m., local standard time; provided, that this section
shall not apply to specific trees and shrubs which at the time of installation of a solar collector or
during the remainder of that annual solar cycle cast a shadow upon that solar collector.
For the purposes of this chapter, the location of a solar collector is required to comply with the
local building and setback regulations, and to be set back not less than five feet from the
property line, and no less than 10 feet above the ground. A collector may be less than 10 feet in
height, only if in addition to the five feet setback, the collector is set back three times the amount
lowered.
25983. Every person who maintains any tree or shrub or permits any tree or shrub to be
maintained in violation of Section 25982 upon property owned by such person and every person
leasing the property of another who maintains any tree or shrub or permits any tree or shrub to
be maintained in violation of Section 25982 after reasonable notice in writing from a district
attorney or city attorney or prosecuting attorney, to remove or alter the tree or shrub so that
there is no longer a violation of Section 25982, has been served upon such person, is guilty of a
public nuisance as defined in Sections 370 and 371 of the Penal Code and in Section 3480 of
the Civil Code.
For the purposes of this chapter, a violation is hereby deemed an infraction. 43 The complainant
shall establish to the satisfaction of the prosecutor that the violation has occurred prior to the
prosecutor's duty to issue the abatement notice. For the purpose of this section, "reasonable
notice" means 30 days from receipt of such notice. Upon expiration of the 30-day period, the

42
All California laws can be found at www.leginfo.ca.gov.
43
An infraction is a minor violation of the law that is punishable only by a fine.

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complainant shall file an affidavit with the prosecutor alleging that the nuisance has not been
abated if the complainant wishes to proceed with the action.
The existence of such violation for each and every day after the service of such notice shall be
deemed a separate and distinct offense, and it is hereby made the duty of the district attorney,
or the city attorney of any city the charter of which imposes the duty upon the city attorney to
prosecute state infractions, to prosecute all persons guilty of violating this section by continuous
prosecutions until the violation is corrected. Each and every violation of this section shall be
punishable by a fine not to exceed one thousand dollars ($1,000).
25984. Nothing in this chapter shall apply to trees planted, grown, or harvested on timberland
as defined in Section 4526 or on land devoted to the production of commercial agricultural
crops. Nothing in this chapter shall apply to the replacement of a tree or shrub which had been
growing prior to the installation of a solar collector and which, subsequent to the installation of
such solar collector, dies.
25985. Any city, or for unincorporated areas, any county, may adopt, by majority vote of the
governing body, an ordinance exempting their jurisdiction from the provisions of this chapter.
The adoption of such an ordinance shall not be subject to the provisions of the California
Environmental Quality Act (commencing with Section 21000).
25986. Any person who plans a passive or natural solar heating system or cooling system or
heating and cooling system which would impact on an adjacent active solar system may seek
equitable relief in a court of competent jurisdiction to exempt such system from the provisions of
this chapter. The court may grant such an exemption based on a finding that the passive or
natural system would provide a demonstrably greater net energy savings than the active system
which would be impacted.

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